MacDougall v Victorian WorkCover Authority [2021] VCC 1292

(b) the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being "more than significant or marked", and as being "at least very considerable"

(c) in assessing the seriousness of the claimed impairment consequences, a court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[1]

3 The issue is whether the extent of Mr MacDougall's injury meets the relevant test, This is what is often referred to as a "range case".

4 The plaintiff relied on two affidavits sworn by him and an affidavit sworn by his father. Only the plaintiff was cross-examined. Both parties relied on medical reports and other material tendered in evidence.

5 There was no dispute about the facts. Mr MacDougall was born in March 2003 and is currently aged eighteen. In 2018, whilst a Year 10 student, he undertook work experience with All Vehicle Accessories. Two of his brothers also worked there as mechanics and after his work experience finished he was offered some part-time work over the school holidays.

6 On 21 December 2018, he was helping a co-worker who was replacing a roll of vinyl on a roll holder. This required the co-worker to insert a metal rod through the new roll of vinyl. Mr MacDougall was holding the other end of the roll of vinyl. Whilst pushing the rod through the roll, the co-worker jammed Mr MacDougall's left index finger between the rod and another piece of metal, causing the tip of the finger to be crushed. Photographs of the injury show a large laceration just above the distal joint of the index finger.

7 Mr MacDougall attended the Emergency Department of the Northern Hospital, where he was noted to have a laceration of the pulp in the volar and medial aspects of the index finger, with bone visible. X-ray demonstrated a fracture of the distal interphalangeal joint and he underwent surgery. Axial K-wires were put across the joint and the ulnar digital artery and nerve, which had been completely lacerated, were microsurgically repaired. A bony fragment was removed. After surgery, he had a number of follow-up appointments, including for removal of the K-wires. He attended hand therapy.

8 In 2019, Mr MacDougall returned to school and completed Year 11. In February 2020, he commenced a diesel mechanic apprenticeship at Victorian Diesel, where he continues to work on a full-time basis.

9 Mr MacDougall swore affidavits dated 5 August 2020 and 16 August 2021. He says that throughout 2019, he had many outpatient and hand therapy appointments.

10 He does not take any prescription medication. He will take Panadol or over-the-counter analgesics such as Nurofen when he knows that he has to use his finger more, for example he will take it before playing footy. He takes Panadol several mornings a week in winter, as he starts work early, the workshop is very cold and his finger is sensitive to cold. His finger stings all day in the cold.

11 His finger also seems sensitive to the sun and he has burned it "severely".

12 His finger causes him pain if it is bent or accidentally knocked. The pain is sharp, followed by an ache. He avoids using that part of his finger if possible but given his work, it is not possible to avoid knocks and bumps. Every time he gets a knock or bump, which happens about ten times a day, he feels a stinging pain, followed by an ache for about 15 minutes.

13 He is right hand dominant but his chosen occupation requires him to use both hands. This makes it difficult to perform "fiddly" tasks, such as grabbing a screw or a nail with his left hand.

14 He finds his injury has a big effect on how comfortably and quickly he can do his job as an apprentice. He finds it difficult to hold nuts and bolts with his left hand as he lacks the control he needs. It takes him twice as long to use a screwdriver or spanner as his colleagues. He is slow screwing in screws as this requires both hands. Plugging and unplugging electrical plugs is difficult and he often asks someone else to do this for him. Wearing gloves on the left hand is painful and so he chooses not to wear gloves. Most of his co-workers use gloves. Not using gloves means his hands are more frequently dirty and sore. Removing small clips with his left hand is time consuming. If he drops a clip into the engine it is difficult to retrieve. If he is not concentrating, small items fall through his hand. Even a simple thing like taking the backing off a service sticker is difficult and time consuming.

15 Prior to his injury, he was playing footy for a local team and basketball for two teams - a local league and a representative league. He intended to keep playing basketball even after leaving school and starting work, because he loved it and was good at it. Because his finger causes him pain, he has decided to prioritise footy and has given up basketball.

16 His footy is very important to him. He was one of the outstanding players in his team prior to his injury and played in the ruck where he took a lot of overhead marks. Now he is more reluctant to take risks or to put himself in a position where his finger might be further injured, which affects the quality of his game. He no longer taps the ball out with both hands which makes him a more predictable opponent. He had permission to wear a splint during games but he no longer uses a splint and just puts up with the pain. If the finger is knocked or jammed by another player, if he hits the ground with his left hand or his hand gets caught in another player's jumper during tackling, his finger is very painful. The adrenaline of the game means that he does not usually focus on the pain at the time but afterward his finger will "kill" him for several days. Prior to his injury, he had ambitions to play VFL or AFL level footy, but his ability is not what it was.

17 He enjoys riding motorbikes but finds riding bikes causes his finger to be very painful. He tries to ignore the pain but finds that his finger is aching and throbbing afterwards.

18 He worries about his future as he is just starting out in his career and does not know what the implications of his injury might be. Specialists have discussed the possibility of a fusion, or even an amputation of the joint if the pain were to significantly worsen, which causes him great concern. He feels depressed thinking about putting up with his finger and the pain it causes for years to come.

19 Post-operatively, he has scarring of the index finger and a deviation at the distal interphalangeal joint in an ulnar direction. Basically he has a bent tip to his finger with some scarring. He has a reduced range of movement in the finger, with reduced flexion and extension. He has altered sensation in the fingertip and an intolerance for cold.

20 His condition is now stable. Mr Damon Thomas, plastic and reconstructive surgeon, considers there is a small risk that he will develop arthritis which may cause pain and reduce further the range of movement but says this is a possibility rather than a probability.

21 Dr Murray Stapleton, plastic and hand surgeon, says that his grip power is diminished which affects pulling, pushing and manipulative activities of the left hand.

22 Mr David Merenstein, general surgeon, says that he has nerve damage and associated osteoarthritic changes to the distal joint which produces pain on movement. Treatment options to reduce the pain would be amputation through the distal interphalangeal joint or arthrodesis through the distal joint (fusion). He recommends a further surgical opinion, given Mr MacDougall's age.

23 Mr Peter Dixon, plastic surgeon, notes a stable, barely visible scar, and a deviation of the digit of between 10-15 degrees, and devoid of sensation. He recommends no further treatment as no interventions will improve the function of the hand. An assessment attached to Mr Dixon's report and completed by the plaintiff records severe difficulty with using a knife to cut food, recreational activities, tingling in his finger and doing his work as he would like.

24 All the doctors agree that his current level of impairment is permanent.

25 The defendant accepts the evidence of the plaintiff in this case and makes no attack on his credit. The defendant submits that even accepting everything that the plaintiff says about the impacts of his injury, the consequences simply do not rise to the level required to be granted a serious injury certificate. When assessing what has been lost and what has been retained, the plaintiff has retained a great deal. He is able to work full time in his chosen profession without time off or the requirement to significantly modify his duties. He continues to play sport and engage in his social pursuits. He is independent in his activities of daily living. The treatment he required has "come and gone". There is no ongoing prescription medication, no ongoing hand therapy, no suggestion that further surgery is anything more than a possibility. He has required no attendances at his general practitioner for his injury.

26 The plaintiff says that, having regard to his very young age, he will have to live with the consequences for a long time. Those consequences are significant, in that they impact his day-to-day functioning and he is a person who does not have the luxury of relying only on his dominant right hand. His chosen career is in a field that requires the daily use of both hands. He experiences pain most days, particularly in winter, which requires analgesia, albeit not prescription medication. He faces an uncertain future with regard to the development of arthritis and the possibility of surgery to fuse or remove the joint. His injury has impacted his social life, in that he has given up basketball, is no longer as good a footy player as he once was and has to put up with pain when motorbike riding. He has another fifty years of working life ahead of him which is a long time to put up with a painful, sensitive and compromised finger in a profession where he has to use his fingers all day every day.

27 The defendant relies on the case of TTB SMS Pty Ltd v Reading.[2] In that case, a plaintiff, aged thirty-eight at the time of injury and fifty at the time of hearing, sustained injury to the fingers of his right (dominant) hand. His middle finger was dislocated, requiring relocating. He had surgery to his little finger with the insertion of a plate and screws. He had months of hand therapy and was left with permanently curled-in fingers. He had intermittent pain and cramps in his right hand, as well as spasms and numbness. Everyday tasks such as doing up shoelaces, carrying shopping and opening doors were more difficult. His pain and cramping was worse in cold weather, and if he used his hand too much it would ache. The worker had returned to work within four days and had not missed work as a consequence of the injury since, the impact on his recreational activities was mild, he retained full capacity to care for himself and live independently, his mood and ability to sleep were unaffected and he suffered from no cognitive defect. The comparison which the Court is required to perform is not just with other impairments of the hand but with other types of physical impairment that may be suffered. The Court of Appeal found that the worker had suffered an injury that was not trivial but could not fairly be described as "at least very considerable".

28 The plaintiff highlighted a number of differences in his case to the case of Reading.[3]

(a) He is much younger, being only eighteen and therefore the consequences of the injury will be with him for a much longer time;

(b) His injury is to his index finger, albeit of his non-dominant hand;

(d) His injury causes a significant impact on his life, including his ability to participate in sport, which is very important to him, and his activities of daily living, including having difficulty cutting food with a knife;

(e) His injury impacts his work, he is slower, less agile and cannot wear gloves which exposes his hands to the risk of other injuries.

29 The plaintiff relies on the case of Stijepic v One Force Group Australia Pty Ltd[4] where the Court of Appeal noted that -

"... when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time."

30 In Haden Engineering Pty Ltd v McKinnon,[5] Maxwell P set out a list of ordinary activities which may be affected by a "very considerable" injury:

• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.

31 In the present case, only Mr MacDougall's recreational activities are significantly impacted by his injuries, that being his ability to fully participate in the sporting pursuits he previously enjoyed. He noted in a "self report" that he has severe difficulty cutting food with a knife but there was no other evidence about this and there is no suggestion that he requires assistance with activities of daily living.

32 I accept that Mr MacDougall experiences pain at the level he describes - that is a stinging or sharp pain when his finger is knocked, followed by a dull ache, and that this can happen many times a day when he is working. His pain is worse and more frequent in winter. I accept that he is required to use both hands for his work and that this means he must expose his injured finger to the risk of getting knocked or jarred, increasing his exposure to pain. I accept that his finger is painful during and after sporting activities, and especially if it gets knocked or jammed during play. The pain he experiences, whilst not insignificant, is not constant and is controlled by non-prescription mediation. His injury has not caused him to seek out other pain relief or consult his general practitioner.

33 I accept that having a deviation of the index finger, accompanied by loss of mobility and hypersensitivity, comprises a significant injury, particularly when sustained at such a young age and particularly for a person who is working with his hands all day. It impacts on aspects of his work such as doing fine or "fiddly" work and performing ordinary tasks such as peeling the backing off stickers. I accept that this is annoying and frustrating.

34 However, when comparing the consequences of this injury, to the range of possible consequences, and comparing what has been lost with what has been retained, I am not satisfied that the consequences for Mr MacDougall are more than significant or marked or at least very considerable. He has retained his ability to work full time in his chosen occupation. He retains a full capacity to care for himself and live independently. He has no cognitive defect, his sleep is not affected, he requires no prescription medication. He is able to continue to participate in footy and ride motorbikes.

35 For these reasons, the application is dismissed.

[1] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 ("Dwyer") at paragraph [27] (per Ashley JA); Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [44] (per Ashley JA and Beach AJA); Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [77] (per Ross AJA), quoting Dwyer (ibid) at paragraph [27]

[2] [2020] VSCA 203 ("Reading")

[5] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [16]